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2014 Supreme(Mad) 3557
High Court of Judicature at Madras
R. SUBBIAH, J.
Minor Mahema & Others
Versus
E.K. Lingamoorthy & Others
C.M.A.Nos. 2155 & 2363 of 2013
Decided on: 08-10-2014
V.P. Sengottuvel, K. Surendranath, N. Manokaran, Advocates.
Headnote:
Hindu Minority and Guardianship Act, 1956 - Section 8(2) - Guardian and Wards Act, 1890 - Section 29 - Negotiating to purchase said property - Delivering immediate possession of all those properties - Grant permission to sell minors property - Minor appellants represented by their mother are petitioners respondents in said appeal are prospective buyers of minors property and appellants are Objectors/third party who opposed to grant permission to sell minors property in said GWOP before Court below - Since said was dismissed challenging order of dismissal made in said GWOP petitioners have filed present appeal - Questioning observation made by Court below in said GWOP to effect that unregistered Will marked on side of Objectors is surrounded by suspicion Objectors have filed the appeal - Brief facts of case of petitioners in nutshell - Minor petitioners are twins and their parents - Their paternal grandfather was one who was previously running hotel business at Erode town - Minor petitioners paternal grand-father made very good earnings and acquired several properties in form of mostly commercial buildings fetching very good monthly rents besides two house sites and small extent of dry land described in schedule to petition - Father of minor petitioners met with a fatal road accident and died an early age leaving behind minor petitioners his widow - Grand-father was taking care of minors and their mother – Initially grand-father executed a Will bequeathing several items of properties viz. buildings two house sites and dry land in favor of minor petitioners – Subsequently said executed a registered settlement deed through which he had conveyed all other items of properties in favor of minor petitioners through their mother delivering immediate possession of all those properties to them – Held, on perusal of materials available on record court find that it is case of petitioners that subject property was bequeathed to minors by their paternal grandfather by way registered Will - Objectors defended their case by examining three witnesses and marking eight documents including unregistered Will as Ex.R.6 - According to counsel for objectors earlier registered executed in favor of minor petitioners was subsequently revoked by way of unregistered Will executed in favor of objectors – But objectors have not mentioned anything about said unregistered Will in their objection petition – But only during cross-examination they produced unregistered Will - Attesters to both Wills were examined before Court below - Only in view of evidence adduced on either side Court below was forced to discuss about Wills produced on either side since both parties are claiming right over subject property based on Wills - Therefore in court considered opinion observation with regard to Wills was invited by objectors themselves by producing Will and also examining attesters to Will - Court below after discussing about Wills has come to conclusion that Court is not in a position to go into details with regard to the rights of the parties, since the petition itself is for limited purpose of seeking permission to sell the property of minors - Both parties have not even sought to establish their right over subject property on basis of Wills - Since Court below has not arrived at any conclusion with regard to right of parties over subject property now absolutely there is no need to set aside observation made by Court below on Wills produced on either side since said observation was made by Court below only based on evidence adduced before it - Only if there is any finding which is not based on evidence question of setting aside same will arise - Question It is submission of counsel for petitioners that Trial Court has failed to see that subject property is not yielding any income to petitioners and intention of petitioners is only to sell property to construct a residential building in vacant place only for benefit of minors - According to counsel for petitioners by setting aside impugned order permission has to be given to mother of minors to sell subject property – Appeals dismissed
1. Both the above appeals arise out the judgment and decree dated 20.02.2013 in G.W.O.P.No.10 of 2010 passed by the learned Principal District Judge, Erode. Since both the appeals arise out the same judgment and decree, they are dispose of by way of this common judgment.
2. The minor appellants represented by their mother in C.M.A.No.2155 of 2013 are the petitioners, the respondents in said appeal are the prospective buyers of the minors' property and the appellants in C.M.A.No.2363 of 2013 are the Objectors/third party, who apposed to grant permission to sell the minors' property, in the said GWOP before the Court below. Since the said GWOP.No.10 of 2010 was dismissed, challenging the order of dismissal made in the said GWOP, the petitioners have filed the present appeal in C.M.A.No.2155 of 2013. Questioning the observation made by the Court below in the said GWOP, to the effect that the unregistered Will dated 17.03.2008 marked on the side of the Objectors is surrounded by suspicion, the Objectors have filed the appeal in C.M.A.No.2363 of 2013.
3. For the sake of convenience, the appellants in C.M.A.No.2155 of 2013 are referred as petitioners and the appellants in C.M.A.No.2363 of 2013 are referred as objectors and the prospective buyers, who are the respondents in C.M.A.No.2155 of 2013 and arrayed as the respondents 3 & 4 in C.M.A.No.2363 of 2013, are referred as respondents.
4. The brief facts of the case of the petitioners, in nutshell, are as follows:- The minor petitioners are twins and their parents are one L.Gopalakrishnan and G.Kalaivani. Their paternal grandfather was one Lakhsmanan, who was previously running hotel business at Erode town. The minor petitioners' paternal grand-father Lakshmanan made very good earnings and acquired several properties in the form of mostly commercial buildings fetching very good monthly rents, besides two house sites and small extent of dry land described in the schedule to the petition. The father of the minor petitioners met with a fatal road accident and died on 24.05.2004 at an early age, leaving behind the minor petitioners, his widow. Thereafter, the grand-father Lakshmanan was taking care of the minors and their mother G.Kalaivani. Initially, the grand-father Lakshmanan executed a Will bequeathing several items of properties viz., buildings, two house sites and the dry land (petition scheduled property) in favour of the minor petitioners. Subsequently, the said Lakshmanan executed a registered settlement deed, through which he had conveyed all the other items of the properties in favour of the minor petitioners, through their mother Kalaivani, delivering immediate possession of all those properties to them. The landed property viz., the petition scheduled property was the only item left behind in the above said Will in favour of the minor petitioners. Subsequently, the testator Lakshmanan also died on 27.08.2009 and thereafter, the properties devolved upon the minors and the same now belong exclusively to the minor petitioners. The minor petitioners have leased out several items of the buildings settled in their favour and they are deriving decent income. The minor petitioners are being looked after and educated by their guardian/mother Kalaivani in the proper manner. But, they are not having any residential building of their own and they are actually residing in a rented building with their guardian/mother Kalaivani. They are also having two house sites, situated adjacently, obtained by them through the settlement deed and it was the intention of their grand-father late Lakshmanan to put up a residential house for them in the said site by selling away the petition scheduled property. The dry land measuring to an extent of 56 cents described in the schedule to the petition is not having any proper approach road and it could be reached only by a foot path, through which men or cattle can pass. The carts and other vehicles could not be taken to the said land even for
